191.656. Confidentiality of reports and records, exceptions--violation, civil action for injunction, damages, costs and attorney fees--health care provider participating in judicial proceeding, immune
Confidentiality of reports and records, exceptions--violation, civilaction for injunction, damages, costs and attorney fees--health careprovider participating in judicial proceeding, immune from civilliability.
191.656. 1. (1) All information known to, and records containingany information held or maintained by, any person, or by any agency,department, or political subdivision of the state concerning anindividual's HIV infection status or the results of any individual's HIVtesting shall be strictly confidential and shall not be disclosed exceptto:
(a) Public employees within the agency, department, or politicalsubdivision who need to know to perform their public duties;
(b) Public employees of other agencies, departments, or politicalsubdivisions who need to know to perform their public duties;
(c) Peace officers, as defined in section 590.100, RSMo, the attorneygeneral or any assistant attorneys general acting on his or her behalf, asdefined in chapter 27, RSMo, and prosecuting attorneys or circuit attorneysas defined in chapter 56, RSMo, and pursuant to section 191.657;
(d) Prosecuting attorneys or circuit attorneys as defined in chapter56, RSMo, to prosecute cases pursuant to section 191.677 or 567.020, RSMo.Prosecuting attorneys or circuit attorneys may obtain from the departmentof health and senior services the contact information and test results ofindividuals with whom the HIV-infected individual has had sexualintercourse or deviate sexual intercourse. Any prosecuting attorney orcircuit attorney who receives information from the department of health andsenior services pursuant to the provisions of this section shall use suchinformation only for investigative and prosecutorial purposes and suchinformation shall be considered strictly confidential and shall only bereleased as authorized by this section;
(e) *Persons other than public employees who are entrusted* with theregular care of those under the care and custody of a state agency,including but not limited to operators of day care facilities, group homes,residential care facilities and adoptive or foster parents;
(f) As authorized by subsection 2 of this section;
(g) Victims of any sexual offense defined in chapter 566, RSMo, whichincludes sexual intercourse or deviate sexual intercourse, as an element ofthe crime or to a victim of a section 566.135, RSMo, offense, in which thecourt, for good cause shown, orders the defendant to be tested for HIV,hepatitis B, hepatitis C, syphilis, gonorrhea, or chlamydia, once thecharge is filed. Prosecuting attorneys or circuit attorneys, or thedepartment of health and senior services may release information to suchvictims;
(h) Any individual who has tested positive or false positive to HIV,hepatitis B, hepatitis C, syphilis, gonorrhea, or chlamydia, may requestcopies of any and all test results relating to said infections.
(2) Further disclosure by public employees shall be governed bysubsections 2 and 3 of this section;
(3) Disclosure by a public employee or any other person in violationof this section may be subject to civil actions brought under subsection 6of this section, unless otherwise required by chapter 330, 332, 334, or335, RSMo, pursuant to discipline taken by a state licensing board.
2. (1) Unless the person acted in bad faith or with consciousdisregard, no person shall be liable for violating any duty or right ofconfidentiality established by law for disclosing the results of anindividual's HIV testing:
(a) To the department of health and senior services;
(b) To health care personnel working directly with the infectedindividual who have a reasonable need to know the results for the purposeof providing direct patient health care;
(c) Pursuant to the written authorization of the subject of the testresult or results;
(d) To the spouse of the subject of the test result or results;
(e) To the subject of the test result or results;
(f) To the parent or legal guardian or custodian of the subject ofthe testing, if he is an unemancipated minor;
(g) To the victim of any sexual offense defined in chapter 566, RSMo,which includes sexual intercourse or deviate sexual intercourse, as anelement of the crime or to a victim of a section 566.135, RSMo, offense, inwhich the court, for good cause shown, orders the defendant to be testedfor HIV, B, hepatitis C, syphilis, gonorrhea, or chlamydia, once the chargeis filed;
(h) To employees of a state licensing board in the execution of theirduties under chapter 330, 332, 334, or 335, RSMo, pursuant to disciplinetaken by a state licensing board;
The department of health and senior services and its employees shall not beheld liable for disclosing an HIV-infected person's HIV status toindividuals with whom that person had sexual intercourse or deviate sexualintercourse;
(2) Paragraphs (b) and (d) of subdivision (1) of this subsectionshall not be construed in any court to impose any duty on a person todisclose the results of an individual's HIV testing to a spouse or healthcare professional or other potentially exposed person, parent or guardian;
(3) No person to whom the results of an individual's HIV testing hasbeen disclosed pursuant to paragraphs (b) and (c) of subdivision (1) ofthis subsection shall further disclose such results; except thatprosecuting attorneys or circuit attorneys may disclose such information todefense attorneys defending actions pursuant to section 191.677 or 567.020,RSMo, under the rules of discovery, or jurors or court personnel hearingcases pursuant to section 191.677 or 567.020, RSMo. Such information shallnot be used or disclosed for any other purpose;
(4) When the results of HIV testing, disclosed pursuant to paragraph(b) of subdivision (1) of this subsection, are included in the medicalrecord of the patient who is subject to the test, the inclusion is not adisclosure for purposes of such paragraph so long as such medical record isafforded the same confidentiality protection afforded other medicalrecords.
3. All communications between the subject of HIV testing and aphysician, hospital, or other person authorized by the department of healthand senior services who performs or conducts HIV sampling shall beprivileged communications.
4. The identity of any individual participating in a research projectapproved by an institutional review board shall not be reported to thedepartment of health and senior services by the physician conducting theresearch project.
5. The subject of HIV testing who is found to have HIV infection andis aware of his or her HIV status shall disclose such information to anyhealth care professional from whom such person receives health careservices. Said notification shall be made prior to receiving services fromsuch health care professional if the HIV-infected person is medicallycapable of conveying that information or as soon as he or she becomescapable of conveying that information.
6. Any individual aggrieved by a violation of this section orregulations promulgated by the department of health and senior services maybring a civil action for damages. If it is found in a civil action that:
(1) A person has negligently violated this section, the person isliable, for each violation, for:
(a) The greater of actual damages or liquidated damages of onethousand dollars; and
(b) Court costs and reasonable attorney's fees incurred by the personbringing the action; and
(c) Such other relief, including injunctive relief, as the court maydeem appropriate; or
(2) A person has willfully or intentionally or recklessly violatedthis section, the person is liable, for each violation, for:
(a) The greater of actual damages or liquidated damages of fivethousand dollars; and
(b) Exemplary damages; and
(c) Court costs and reasonable attorney's fees incurred by the personbringing the action; and
(d) Such other relief, including injunctive relief, as the court maydeem appropriate.
7. No civil liability shall accrue to any health care provider as aresult of making a good faith report to the department of health and seniorservices about a person reasonably believed to be infected with HIV, orcooperating in good faith with the department in an investigationdetermining whether a court order directing an individual to undergo HIVtesting will be sought, or in participating in good faith in any judicialproceeding resulting from such a report or investigations; and any personmaking such a report, or cooperating with such an investigation orparticipating in such a judicial proceeding, shall be immune from civilliability as a result of such actions so long as taken in good faith.
(L. 1988 H.B. 1151 & 1044 § 3, A.L. 1992 S.B. 511 & 556 merged with S.B. 638, A.L. 1993 S.B. 233, A.L. 1996 S.B. 858, A.L. 1999 H.B. 191, A.L. 2002 H.B. 1756)*....* These words appear twice in original rolls.
(1998) Prosecutors, judges and juries are public employees with a need to know for prosecutions pursuant to section 191.677. State v. Mahan, 971 S.W.2d 307 (Mo.banc).